Same-sex marriage verdict updates | Activists, petitioners call for legislative action in same-sex marriage matter after SC ruling

Kerala Higher Education and Social Justice Minister R Bindu on Tuesday termed the observations of CJI D Y Chandrachud on same-sex marriages as important, and said the current views on inheritance and marriages need to be reformed with the changing times.

Bindu, speaking to reporters here, said that what CJI Chandrachud said about same-sex marriages has been accepted by modern society and also scientifically acknowledged.

She said that people with same-sex affinity were always there among all communities and therefore, no one among the modern scientific community would be ready to term such persons as an aberration or against the natural order.

The minister said the presence and visibility of transgenders and those with same-sex affinity was on the increase and therefore, it was time to give them social acceptance.

The minister expressed hope that the Central government would take an approach keeping in mind human dignity while making any law on the subject.

“In the current scenario where the LGBTQIA++ community’s human needs and rights are being considered, our views on inheritance and marriages also need to be reformed with the changing times,” she said.

The minister said what the CJI observed about the institution of marriage -- that it was not a “static and unchanging institution” -- was very important.

“No one should be adamant that the institution of marriage should always continue in the same way. It can change as our views and opinions change,” she said.

- PTI

AIMIM Chief Asaduddin Owaisi on Tuesday said the Supreme Court has upheld the principle of parliamentary supremacy, reacting to the apex court’s refusal to grant legal recognition to same-sex marriages.

“SC has upheld the principle of parliamentary supremacy. It is not up to the courts to decide who gets married under what law,” the Hyderabad MP said on social media platform X. “My faith and my conscience say that marriage is only between a man and a woman. This is not a question of decriminalisation like in the case of 377, it is about recognition of marriage. It is correct that the state cannot extend it to anyone and everyone.”

Owaisi further said he was concerned about “an observation made from the bench that transgender people can marry under SMA and Personal Laws”. He said, “This is not a correct interpretation as far as Islam is concerned, as Islam does not recognise marriage between two biological males or two biological females.” He added: “I agree with Justice Bhat that ‘a gender-neutral interpretation of the Special Marriage Act may not be equitable at times and can result in women being exposed to vulnerabilities in an unintended manner’.”

- PTI

Muslim organisation Jamiat Ulema-e-Hind on Tuesday welcomed the Supreme Court’s refusal to grant legal recognition to same-sex marriages, saying the order “reinforces the preservation of the traditional institution of marriage.”

Jamiat Ulema-e-Hindi (Maulana Mahmood Madani faction) hailed the ruling as “landmark” and noted that the court arrived at the decision after carefully examining the arguments presented by various social, governmental, and religious organisations.

In a statement, Madani welcomed the verdict and emphasised that the ruling reinforces the preservation of the traditional institution of marriage, which has been a fundamental pillar of our society for centuries.

“It underscores the importance of upholding the moral and ethical principles that have long defined our cultural identity,” Madani said.

The Jamiat chief commended the court for its judgement in “maintaining a delicate balance between the protection of individual rights and the preservation of our cultural ethos.” The apex court, while passing four separate verdicts, was unanimous in holding that there is “no unqualified right” to marriage, and same-sex couples can’t claim it as a fundamental right under the Constitution.

- PTI

With the Supreme Court declining to accord legal recognition to same-sex marriage on Tuesday, a section of the LGBTQ+ community, petitioners and activists highlighted the positives in the ruling and called for legislative action while others expressed dismay and concern.

Pranab, one of the petitioners in the case, highlighted the positives in the Supreme Court’s decision.

“They have not recognised (same-sex marriage)...but they have given us certain rights, and I am trying to focus on the positive side of that. They have said my partner can also claim the body after I am gone. I can also go to police. There are safety opportunities, healthcare opportunities for me. Yes, the decision was quite diplomatic to keep both sides happy, to balance with society,” Pranab said.

Sharif Rangnekar, another petitioner in the case, expressed concerns over the lack of concrete timelines for implementing the changes.

“I think we don’t have timelines. We have heard beautiful things said by the judges. But we don’t have a concrete timeline on when these will be implemented. They did not clarify that,” he said.

- PTI

The Pro-Life Apostolate of Syro-Malabar Church has welcomed the Supreme Court verdict on October 17 which refused to grant constitutional validity to same-sexmarriages in the country.

Read more here...

Solicitor General Tushar Mehta welcomed the Supreme Court judgement refusing to accord legal recognition to same-sex marriage under the Special Marriage Act and leaving the issue for Parliament to decide.

The solicitor general, the key lawyer for the Centre who urged the top court to let Parliament take a call on the matter since it fell within the ambit of the legislature, said, “I wholeheartedly welcome the judgment. I am happy that my stand has been accepted.” “All four judgements have taken the jurisprudence of our nation and the intellectual exercise which went into writing the judgments to a next level. There are very few courts in the world where one can expect this level of intellectual and scholarly judicial exercise. This judgement would be read across jurisdictions,” he said in a statement.

Hailing the verdicts, the top law officer said they balance the interests of individuals with that of a civilised society.

“It is an important step in jurisprudential development on the question of separation of powers and provides vivid and eloquent insights into the working of the Parliament, the Executive and the Judiciary which function complementing each other strictly as per the Constitution,” he said.

- PTI

As the Supreme Court refused to grant legal recognition to same-sex marriages, the Congress on Tuesday said as a party of inclusion, it believes in non-discriminatory processes in the judicial, social, and political realm.

In a post on X, Congress general secretary Jairam Ramesh said, “On the same sex marriage and related issues we are studying the different and differing judgments delivered in the Supreme Court today and will have a detailed response subsequently.” “Indian National Congress has always stood with all our citizens to protect their freedoms, choices, liberties and rights. We, as a party of inclusion, firmly believe in non discriminatory processes — judicial, social, and political,” Ramesh said.

- PTI

LGBTQIA+ rights activist Harish Iyer said that although the verdict was not in their favour but many observations by the Supreme Court were made in the favour of the community.

“They have also put the responsibility on Central government and Central government’s Solicitor General said so many things against us so it is important for us to go to our elected government, MPs and MLAs and tell them we are as different as two people. War is underway...it might take sometime but we will get societal equality,” Iyer said.

The Supreme Court Bar Association has welcomed the Supreme Court’s ruling on the same-sex marriage matter where the apex court has accepted the version of the central government and the right to legislation lies in the domain of Parliament.

”I’m happy that the Supreme Court of India has accepted the version of the government of India in which it was argued that the court has no power to give this right of same-sex marriage. It is the only right of the Indian parliament. Today it has been accepted by the honourable Supreme Court. We are happy that the Supreme Court has held that this power can’t be given to the same sex for having a marriage because India is an ancient country,” Adish Aggarwala, President of the association, said.

”India has its own values in society. So by not providing this right, we hail the judgment of the Supreme Court on this aspect,” said Aggarwala.”

Activist Anjali Gopalan, who was among the bunch of petitioners in the same-sex marriage case said that the Supreme Court verdict refusing to recognise the legality of same-sex marriages in the country was disappointing.”We have been fighting for long and will keep doing so. Regarding adoption also nothing was done. What the CJI said was very good regarding adoption, but it’s disappointing that other justices didn’t agree...this is democracy but we are denying basic rights to our own citizens,” Ms. Gopalan said.

Advocate Karuna Nundy said that although there were four separate judgements but anything that was unanimous, was that the rights of queer citizens must be protected and state government can protect them.

“There were four separate judgements. The Chief Justice of India DY Chandrachud and Justice Sanjay Kishan Kaul together elucidated some very important sets of legal and jurisprudential principles. They said that there is no fundamental right to marriage but there are various aspects of the right to marriage located in the constitution including Article 21, which is the right to dignity,” Advocate Nundy told ANI.

The Vishva Hindu Parishad has welcomed the Supreme Court’s refusal to grant legal recognition to same-sex marriages and said the court’s decision to not give “homosexuals” the right to adopt a child is also a “good step”.

“We are satisfied that the Supreme Court, after listening to all the parties concerned, including Hindu, Muslim and Christian followers, has given the decision that the relationship between two homosexuals in the form of marriage is not eligible for registration. This is not even their fundamental right,” the VHP’s national working president Alok Kumar said.

Rashtriya Swayamsevak Sangh welcomes the Supreme Court’s decision on marriage rights for LGBTQ community. RSS publicity in-charge Sunil Ambekar in a X post said, “The Supreme Court’s decision regarding gay marriage is welcome. Our democratic parliamentary system can seriously discuss all the issues related to this and take appropriate decisions.”

Justice Narasimha said it would not be Constitutionally permissible to recognize a right to civil union mirroring a marriage.

He said a review of legislative schemes which exclude same-sex partners from pension, PF, gratuity, and insurance needs to be undertaken.

The right of LGBTQIA is gender identity, right to sexual orientation, right to cohabitation and they have full freedom in the same, Justice Narasimha said.

Justice Narasimha said marriage is conditioned with legislative intervention.

He also said CARA regulations are not void.

Concluding his judgement, Justice Bhat, said there is no unqualified right to marriage.

“Conferring a legal status to a civil union can only be through enacted law. But these findings will not preclude the right of queer persons to enter into relationships,” he said.

He further said that the court cannot a legal framework for queer couples, and the Legislature should do it, as there are several aspects to be taken into consideration.

Justice Raveendra Bhat, reading out his judgement, said the court cannot create a legal framework for queer couples, and the Legislature has to do it.

“All queer persons have the right to choose their partners. But the State cannot be obligated to recognize the bouquet of rights flowing from such a Union,” he said.

A gender-neutral interpretation of the Special Marriage Act may not be equitable at times and can result in women being exposed to vulnerabilities in an unintended manner, opined Justice Bhat.

He also agreed with the CJI on transgender persons having a right to marry under the existing laws.

He also said a denial of benefits such as a PF, ESI, pension to queer partners may have adverse discriminatory effect.

Justice Kaul used the term “civil union” for non-heterosexual relationships. They should not suffer any form of discrimination, he said.

He agreed with the CJI that the government should form a committee headed by the Cabinet Secretary to look into entitlements for same-sex couples.

Justice Kaul held that same-sex unions are entitled to protection under a constitutional scheme.

Justice Kaul, however, disagreed with the petitioners that the Special Marriage Act was discriminatory. He says it provides a secular framework.

While recognising the right to civil unions between same-sex couples, Justice Kaul said a regulatory framework should be created to recognise such unions. All constitutional authorities should work towards this end.

Statutes should be interpreted in consonance with the recognition of civil union between same-sex couples.

-Krishnadas Rajagopal

Justice Bhat, reading his judgement said there is a paradox which runs deep in the court’s mind and intervention of the state has to be through state action and be compelled by the agency of this court.

He said the judgment of the CJI propounded a theory of a unified thread of rights and how lack of recognition violated rights. “However, when the law is silent, Article 19(1)(a) does not compel the State to enact a law to facilitate that expression,” he said.

He cites how the limited liability partnership (live-in relationship) was not recognised until recently. The court could not have compelled the state to create a law to recognize such an association.

While we agree that there is a right to a relationship, we squarely recognize that it falls within Article 21, he said.

Justice Bhat, reading out his judgement, said he does not particularly subscribe to the views of the Chief Justice on democratising intimate spaces. “These outcomes were brought by Legislative acts,” he said.

“Marriage is a social institution. The marital status is not conferred by the state. The idea of marriage is not a fundamental right,” he said.

Justice Kaul, concluding his judgement said a legal recognition of non-heterosexual unions is a step towards marriage equality. “Let us preserve the autonomy so long as it does no impinge on others’ rights.,” he said. He further added that non-heterosexual unions and heterosexual unions must be seen as two sides of the same coin.

He suggested enacting an anti-discrimination law that addresses intersectional discrimination.

Disagreeing with Justice Bhat’s statement on the Special Marriage Act, Justice Kaul said the Special Marriage Act is violative of Article 14. “However, there are interpretative limitations in including homosexual unions in it. As rightly pointed out by the SG, tinkering with the SMA can have a cascading effect.”

Agreeing with the CJI’s judgment, Justice Kaul said same-sex relationships have been recognized from antiquity, not just for sexual activities but as relationships for emotional fulfilment. He quotes the Rig Veda and Sufi traditions.

The CJI concluded that the court can neither strike down nor read words into the SMA to include same-sex members within the ambit of the 1954 law.

The CJI said we record the statement of the Solicitor General that the Union Government will constitute a committee to decide the rights and entitlements of persons in queer unions.

He said the committee shall consider including queer couples as a family in ration cards, enabling queer couples to nominate for a joint bank account, rights flowing from pension, gratuity etc.

The CJI, issuing directions to the police department, said there shall be no harassment of queer community by summoning them to police station solely to enquire about their sexual identity. “The police should not force queer persons to return to their family, if they do not wish to.”

Issuing directions to end discrimination, the CJI directs the Union Government, State Governments and Union Territories to ensure there is no discrimination in access to goods and services.

The CJI also directs to sensitise the public about queer rights, to create a hotline for queer community, to create safe houses for queer couples, to ensure inter-sex children are not forced to undergo operations.

Disagreeing with Justice Bhat’s judgment, the CJI says: Justice Bhat says that when there is no right to create a road, the person cannot come to court about the road construction.

Justice Bhat has recognised that courts often create such measures, and the court is not creating an institution by a judicial diktat but is only recognising the entitlements that flow by recognising a heterosexual union.

Adoption regulations are violative of Article 15, and it is discriminatory to the queer community, the CJI said.

It is discrimination that CARA regulations limit a queer person to adopt in an individual capacity and not jointly adopt with a partner because their relationship does not have the legal status of marriage, he said.

Speaking on adoption rights in the country, the CJI said there is no proof to show that children are safer only with married heterosexual parents. “Marriage alone does not give stability to a household,” he said.

The CARA regulations bar unmarried partners from adopting. They can adopt as individuals but not as partners. The adoption regulations use marriage as a criterion, merely because marriage is regulated by law. It does not mean the relationship is stable, observes the CJI.

The Chief Justice on Tuesday said the gender of a person is not the same as their sexuality.

If a transgender person is in a heterosexual relationship, such a marriage is recognized by the law, he said.

CJI Chandrachud said choosing a life partner is integral to the right to life, and the ability to choose a partner to build a life is integral.

The Chief Justice, reading the judgement, said, the formal recognition of a relationship by the State is necessary to avail benefits of society.

Building a life includes the right to choose a partner, he said.

The CJI on Tuesday said that the right to enter into a union includes the right to choose one’s partner and the right to recognition of that union.

The right to enter into a union is included in Article 19 (1)(e), he said.

“Equality demands queer unions should not be discriminated against. Material, economic, and social benefits should be available to same-sex couples as others,” he added.

Reading the judgement on Tuesday, the CJI said if the Special Marriage Act is struck down, it will take the country to the pre-Indpendence era, and weaving words into the SMA would amount to entering the realm of the legislature. The court is not equipped to do that.

It’s the Parliament’s decision if it wants to bring about a change in the Special Marriage Act. The court has not gone into any other laws except the Special Marriage Act, the CJI said.

The CJI said all that happens in a private space cannot be categorised as outside the state ambit. “State can intervene to democratise private space,” he added.

The Chief Justice said the Legislature and not activism brought a change in the society. “The institution of marriage has undergone a sea of change, and the idea of marriage is not static,” he said.

CJI Chandrachud said homosexuality or queerness is not an urban concept or restricted to the upper classes of the society. “To say that queer people exist only in urban and elite spaces is to erase them. It is not an English-speaking man with a white-collar man who can claim to be queer but equally a woman working in an agricultural job in a village.”

The CJI said all those who live in cities can’t be termed as elite.

CJI Chandrachud said there are four judgments in total. “There is the judgment by me, by Justice Kaul, Justice Bhat and Justice Narasimha. There is a degree of agreement and a degree of disagreement on how far we have to go,” the CJI said.

The sole woman judge on the Bench, J. Hima Kohli, has not given a separate opinion.

Chaitanya Sharma, who tied the knot with Abhishek Ray, last year said that they are very hopeful in connection to the Supreme Court pronouncement judgment in the same-sex marriage case adding that although they are socially married, he wants to get legally married too.

”We are very hopeful. Socially we are married, but now we want to get legally married. I think the judgement will be in favour. We are fighting for the positive thing... This is not just about the Marriage Act, it is about the basic fundamental rights... I think some things need to be done legally, then society will also accept it... I think once it is made legal then people will come out and share about this and will not hesitate,” Chaitanya said.

Advocate Arundhati Katju, who is pleading on behalf of the lead petitioners said that they are waiting in anticipation of the judgement of the Supreme Court.

“It is a very big day and we are waiting in anticipation of the judgement of the Supreme Court. We’ve been waiting for this day for many years,” Ms. Katju said.

“By legalising same-sex marriage, India can join the 30-odd countries which allow it, and lead from the front in Asia where only Taiwan has legalised it,” The Hindu wrote in an editorial published on January 10, 2023.

Indian Activist Anjali Gopalan, hoping for a positive verdict said it can be a civil right or marriage equality right.

“We hope for a positive verdict, I think the court will give us something, it can be a civil right or marriage equality right. Everyone should get equal rights, we’re all citizens of one nation. If the court will give us the right, the government will have to follow it,” Ms. Gopalan told ANI.

ANI

Quoting Vedas and Manusmriti, Shri Sanatam Dharm Pratinidhi Sabha opined that the concept of same-sex marriages is “catastrophic” and that it would have a “pernicious effect” on Indian culture and society.

The Akhil Bhartiya Sant Samiti dubbed same-sex marriage as “totally unnatural”. Additionally, it said to “keep husband and wife together is the law of nature. ‘Kanyadan’ and ‘Saptapadi’ have basic importance in Hindu marriages.”

The Jamiat-Ulama-i-Hind also opposed same-sex marriage by stating that marriage between opposite sexes is the ‘basic feature’ of marriage. “Islam’s prohibition of homosexuality has been categorical from the dawn of the religion of Islam itself. LGBTQIA+ movement dates back to the Western sexual liberation movement,” the Jamiat said.

Similarly the Telangana Markazi Shia Ulema Council also claimed that persons raised by same-sex couples were “much more likely” to suffer from depression, low academic achievement, unemployment and are more likely to smoke marijuana etc.

The Union government has taken a vague stand in the issue. While it has not explicitly spoken against it, the Centre argued the matter should be debated in the Parliament.

A mere judicial declaration recognising same-sex marriages would not be enough. The fall-out of such a declaration would be too numerous, varied and complex for the court.

Midway through the hearing in April-May, the five-judge Bench headed by Chief Justice of India D.Y. Chandrachud had even advised the petitioners against opting for an “all-or-broke approach”. It suggested that “incremental changes in issues of societal ramifications are a better course to take”.

Our Legal Correspondent Krishnadas Rajagopal weighs in other options in front of the SC Bench

The Netherlands was the first country to make same-sex marriage legal, in 2001. Taiwan is the only Asian country to allow same sex marriages.

Only 35 countries have legalised same-sex marriage, with Estonia joining the list from January 2024.

Here is a breakdown on homosexuality and marriages.

Supriyo and Abhay Dang are the main petitioners of the case. They are represented by senior advocate Menaka Guruswamy, advocate Arundhati Katju and Govind Manoharan.

Incidentally Ms. Guruswamy and Ms. Katju, had argued in favour of decriminalising homosexuality.

On April 18, a five-judge Supreme Court Bench, headed by the Chief Justice of India D.Y. Chandrachud, is scheduled to hear a series of petitions seeking legal recognition of same sex marriage even as a host of statutory organisations, religious bodies and NGOs have rushed to court seeking an opportunity to be heard.

Their submissions touch upon various issues from the definition of “marriage” to the “psychological impact” growing up with two men or two women as parents would have on children.

While some have cautioned judges that Indian society is not ready to accept same sex marriage others have linked it to sexual liberation movements in western countries.

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